CHANDRAKANT AMBALAL GANDHI Vs. B. K. ZHA

JUDGEMENT

(1.) A short but interesting question arises in this petition to what is the effect of withdrawal of a petition for a writ of Habeas Corpus without liberty being reserved by the Court for filing fresh petition in respect of the same cause of action. The question arises in the following circumstances:

(2.) : One Girish Ambalal Gandhi has been detained by an order of the Police Commissioner dated August 12, 1985 in exercise of his posers under section 3 of the Gujarat Prevention of Anti -Social Activities Act, 1985 (herein after referred to as "the Act"). The brother of the detenue moved this Court by Special Criminal Application No. 618 of 1985 praying for a writ of certiorari to quash and set aside the said order of detention. The petitioner was heard fully by the Division Bench consisting of G. T. Nanavaty and M.S. Shah JJ. On September 17, 1985 when the matter was exhaustively argued by Mr. R. Barot learned Advocate appearing on behalf of the petitioner in that petition who happens to be the brother of the detenu. The matter ultimately reached for Judgment on 19th September, 1985. At that time another learned Advocate. Mr. Y.M. Barot appeared for Mr. M.R. Barot who had argued the matter on behalf of the detenu when an attempt was made to advance a contention about the delay in considering the representation of the petitioner by the State Government. The Division Bench did not permit Mr. Y.M. Barot who argued this point G' to allow him to amend the petition with the result that the learned Advocate Mr. Y.M. Barot sought permission from the Court to withdraw the petition with leave to file fresh petition. The Division Bench passed the following order permitting withdrawal of the petition:

(3.) THIS Division Bench, therefore, considered as to what was the view of the Bombay High Court in this connection. In Re Prahlad Krishna Kurna (Supra), this question arose in context of a further application made by the detenu whose earlier application under section 91 of the Code of Criminal Procedure was rejected and application for review of the said order was held to be not competent. The further application was made to the court that although a review might not lie it was a right of the detenu to make an application for a writ of habeas corpus under Article 226 of the Constitution to the successive Judges of the Court, and, therefore, even though the application for review stricto senso might not be competent it might be treated as an application under Article 226. The Full Bench speaking through Chagla C.J. referred to the legal position in U.K. in that behalf as digested in Halsbury's was of England Vol. IX P. 227, Para 123 where it has been noted that the applicant has a right to apply to every court competent to issue a writ of habeas corpus and each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of coordinate jurisdiction, even though the &rounds urged are exactly the same After nothing the above observations the full Bench observed that the right which has been recognized in the right not to approach even judge of a Court but to approach every Court and every Tribunal and where is no right to approach the same tribunal or the same Court. The Full Bench also noted that each Judge of the High Court of Justice in England is constituted a Court or a tribunal for the purpose of issuing writs of Habeas Corpus and, therefore, the subject has a right to approach each Judge successively. The Full Bench thereafter considered the Position in India in respect of orders passed by the High Court under section 591 of the Code of Criminal Procedure. The Full Bench ruled as under: